On 17 March 2023, the Worldwide Legal Court docket (ICC) issued arrest warrants for Russian President Vladimir Putin and Maria Alekseyevna Lvova-Belova, Commissioner for Youngsters’s Rights within the Workplace of the President of the Russian Federation, accusing each of illegal deportation of inhabitants and illegal switch of inhabitants from occupied areas of Ukraine to the Russian Federation. South Africa is now in a tough place since it’s internet hosting the fifteenth BRICS Summit in Durban from 22 to 24 August 2023, the place Putin has been invited, and it’s obligated beneath each worldwide and home regulation to arrest and give up him to the ICC if he chooses to journey to South Africa.
Ought to SA arrest Putin? Not so quick.
By Ivo Vegter
South Africa has a strained relationship with the Worldwide Legal Court docket. Though nominally a member, it’s rightly sceptical of the establishment.
On 17 March 2023, the Worldwide Legal Court docket (ICC) introduced that it had issued arrest warrants for a Mr. Vladimir Vladimirovich Putin and a Ms. Maria Alekseyevna Lvova-Belova, each allegedly being ‘liable for the battle crime of illegal deportation of inhabitants (youngsters) and that of illegal switch of inhabitants (youngsters) from occupied areas of Ukraine to the Russian Federation’.
The latter, Ms. Lvova-Belova, is Commissioner for Youngsters’s Rights within the Workplace of the President of the Russian Federation. And the previous, Mr. Putin, could ring a bell as her boss, the holder of the Workplace of the President of the Russian Federation.
This locations South Africa in a singular quandary. It has invited the leaders of the BRICS group of nations (Brazil, Russia, India, China, South Africa) to attend, in particular person, the 15th BRICS Summit in Durban from 22 to 24 August 2023.
Underneath each worldwide and home regulation, it could be obliged to arrest Putin and give up him to the custody of the ICC, ought to he select to journey to South Africa for the occasion.
This obligation was nicely established on a earlier event, which just about precisely mirrors the current one. In 2015, there was an ICC arrest warrant out for Omar al-Bashir, the president of Sudan, when he attended the 25th Meeting of the African Union in Johannesburg.
The South African authorities declined to arrest him, inviting each native and international condemnation.
It argued that overseas heads of state have been topic to immunity from prosecution by advantage of their place, in addition to being entitled to diplomatic immunity.
The Excessive Court docket and the Supreme Court docket of Enchantment, nonetheless, pointed to the home regulation that implements the Rome Statute, the treaty which created the Worldwide Legal Court docket, and held that the federal government’s failure to arrest and detain al-Bashir for give up to the ICC ‘was inconsistent with South Africa’s obligations’ beneath each worldwide and home regulation, and was subsequently illegal.
There was some discuss about whether or not South Africa should be taken to job earlier than both the Meeting of State Events to the Rome Statute, or the United Nations Safety Council. Nevertheless, nothing got here of it, persevering with a well-established historical past of toothlessness on the a part of the ICC.
The South African authorities responded by declaring its intention to withdraw from the Rome Statute, however once more, the courts intervened, ruling the transfer to be unconstitutional with out the prior approval of Parliament. The federal government finally ‘withdrew from the withdrawal’.
Now, it faces the identical conundrum once more. It could be significantly disruptive to South Africa’s overseas coverage to arrest the sitting president of a accomplice within the BRICS alliance.
(Let’s depart apart, for now, whether or not South Africa should be a member of BRICS in any respect, as a substitute of aligning itself extra intently with its main buying and selling companions – and liberal constitutional democracies – within the West. Let’s additionally depart apart whether or not or not Putin should face prosecution as a battle legal. I don’t for a second defend Putin, however my opinion on his guilt isn’t the purpose.)
Of the 5 nations in BRICS, South Africa is by far the smallest, and most depending on the others. The goodwill of Russia and China, on the very least, can be the value for motion towards Putin. South Africa can in poor health afford to lose that goodwill.
South Africa might request that Russian overseas minister Sergei Lavrov deputise for Putin. It might request that Putin attend by video-conference, as a substitute of in particular person.
Neither would doubtless sit nicely with Putin, whose ego could not allow him to cover in Moscow like a mouse too scared to come back out of its gap. Travelling to Durban would even be a wonderful, albeit dangerous, check of South Africa’s loyalty and deference to Putin and the remainder of BRICS. (Allow us to not overlook our place within the pecking order.)
The ultimate possibility is to repeat the refusal to behave, as the federal government did in 2015 with al-Bashir. It could have to take action regardless of the existence of courtroom orders declaring such refusal to be illegal, and regardless of the existence of a Structure that requires the federal government to adjust to home regulation and lawful orders of the courtroom.
This might trigger a really vital authorized and constitutional disaster for the federal government, which it in all probability wouldn’t like to ask lower than a 12 months earlier than crucial nationwide elections.
In an amusing assertion, EFF chief Julius Malema makes a case why Putin should be welcomed in South Africa. He stated: ‘We don’t need the ICC’s hypocrisy to use right here in our nation.’
That is, in actual fact, a reasonably good argument. The ICC is a significantly flawed establishment.
Neither Russia nor Ukraine are signatories to the Rome Statute, for instance, but the ICC assumes jurisdiction over the residents – and rulers – of these international locations. Think about the outcry if it tried to indict a sitting US president.
In actual fact, international locations representing greater than half the world’s inhabitants, together with the US, China, India, Pakistan and Indonesia, aren’t members of the ICC.
The ICC has an extended historical past of prosecuting solely Africans, together with a number of African heads of state, together with al-Bashir, Uhuru Kenyatta and the late Moammar Gaddafi.
From its founding in 1998, it took 24 years, to 2022, earlier than it indicted the primary non-African defendant in relation to battle crimes allegedly dedicated within the nation of Georgia.
The ICC has been notably silent concerning the invasion of Iraq, regardless of well-documented and well-publicised battle crimes corresponding to the abuses at Abu Ghraib. It has additionally been silent about different questionable actions by Western nations, corresponding to missile strikes on civilians and bank-rolling warlords accused of human rights abuses in Afghanistan.
These obvious blind spots make a mockery of the rules-based international order that’s imagined to underlie worldwide establishments.
On the time of the al-Bashir case, I wrote an in-depth article questioning the legitimacy of the ICC as an establishment. It stays legitimate, at this time.
(That article incorporates a useless hyperlink to a dated however very thorough legalistic evaluation, A Lawless International Court docket, printed by the Hoover Institute in 2004. It will possibly now be discovered right here).
Though the ICC represents a sure perfect of worldwide justice and peace, there are severe questions of bias, legality and illustration that undermine its legitimacy.
I’m shocked the South African authorities didn’t reply to the courtroom ruling declaring its tried withdrawal unconstitutional by asking Parliament to ratify such a withdrawal. It could have good trigger to take action.
Any international legal courtroom that presumes to strive people must be established on the idea of broad representivity, versus representing lower than half the worldwide inhabitants.
It must be based mostly on clear, publicised and simply legal guidelines which are utilized evenly and with out bias, and never nearly solely towards Africans.
It ought to act upon instances referred to it by nationwide governments, relatively than instituting instances of its personal volition.
It shouldn’t be capable to act as decide, jury and executioner, because the ICC does at this time.
It might be attainable to ascertain a worldwide judiciary to rule on worldwide regulation utilized to people, however the ICC has so many flaws, it can’t actually be thought of a profitable try at doing so.
Till that’s remedied, dilemmas just like the one going through South Africa vis-à-vis Vladimir Putin will proceed to pull the ICC into controversy.
This text was first printed by Each day Pal and is republished with permission
The views of the author aren’t essentially the views of the Each day Pal or the IRR
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